Citation NR: 9735480
Decision Date: 10/21/97 Archive Date: 10/24/97
DOCKET NO. 94-01 564 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for coronary artery
disease.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Yvette R. White, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1943 to March
1946.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from an April 1992 decision by the RO that denied
the veteran’s claim of entitlement to service connection for
coronary artery disease. This appeal was remanded in
November 1995 for additional development.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he was exposed to "phostine" gas
and "plume" after an extinguisher was employed to control a
fire that had begun in the back of a truck in which he was
riding during service. He states that this explosion caused
him to begin coughing and experience shortness of breath. He
claims that while climbing to the top of the truck to notify
the driver of the fire, he felt something "pull" within his
chest, after which he developed chest pain. He states that
throughout the remainder of his period of service he
experienced intermittent pain and muscle spasms in his chest.
He claims that the development of these symptoms continued to
persist following his separation from service until 1977,
when he was diagnosed with coronary artery disease.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim of entitlement to
service connection for coronary artery disease is not well
grounded.
FINDING OF FACT
No competent medical evidence has been presented that tends
to link coronary artery disease to the veteran’s military
service or to the one-year period following service.
CONCLUSION OF LAW
The veteran’s claim of entitlement to service connection for
coronary artery disease is not well grounded. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
A review of the veteran's service medical records, which
include medical records created from hospital admissions
cards, by the Office of the Surgeon General (SGO) records,
neither show treatment for nor diagnoses of coronary artery
disease. Specifically, his separation examination shows that
his cardiovascular system was normal. Additionally, an X-ray
taken of his chest was shown as normal.
In 1955, a routine chest X-ray was accomplished while he was
admitted into a VA medical center in Lebanon, Pennsylvania,
and his chest X-ray was normal.
In October 1977, the veteran was hospitalized in Easton
Hospital due to severe angina crescendo. Records and
statements from physicians dated thereafter show coronary
artery disease.
At a hearing before a Hearing Officer in August 1992, the
veteran testified that he was exposed to "phostine" gas and
"plume" after an extinguisher was employed to control a fire
that had begun in the back of a truck in which he was riding
during service. He testified that this explosion caused him
to begin coughing and experience shortness of breath. He
also testified that, while climbing to the top of the truck
to notify the driver of the fire, he felt something "pull"
within his chest, after which he developed chest pain.
Additionally, he testified that throughout the remainder of
his period of service he experienced intermittent pain and
muscle spasms in his chest.
The Board remanded this claim in November 1995 in order for
the veteran to submit additional evidence from medical
caregivers. Two letters were sent to him by the RO; however,
no evidence has been submitted in response to these letters.
Legal Analysis
Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38
C.F.R. § 3.303(a) (1996). Service connection is also
warranted where the evidence shows that a chronic disability
or disorder has been caused or aggravated by an already
service-connected disability. 38 C.F.R. § 3.310 (1996);
Allen v. Brown, 7 Vet.App. 439 (1995). With chronic disease
shown as such in service, or within the presumptive period,
subsequent manifestations of the same chronic disease at any
later date are service connected unless clearly attributable
to intercurrent causes. 38 C.F.R. § 3.303(b) (1996).
A person who submits a claim for VA benefits has the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded. Only if the claimant meets this burden does VA
have the duty to assist him in developing the facts pertinent
to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet.App. 78 (1990). If the claimant does not
meet this initial burden, the appeal must fail because, in
the absence of evidence sufficient to make the claim well
grounded, the Board does not have jurisdiction to adjudicate
the claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993).
A well-grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive, but only plausible, to satisfy
the initial burden of 38 U.S.C.A. § 5107(a). To be well
grounded, however, a claim must be accompanied by evidence
that suggests more than a purely speculative basis for
granting entitlement to the requested benefits. Dixon v.
Derwinski, 3 Vet.App. 261, 262-63 (1992). Evidentiary
assertions accompanying a claim for VA benefits must be
accepted as true for purposes of determining whether the
claim is well grounded, unless the evidentiary assertion is
inherently incredible or the fact asserted is beyond the
competence of the person making the assertion. Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). Where the determinative
issue involves medical causation or a medical diagnosis,
competent medical evidence to the effect that the claim is
plausible is required. Murphy, 1 Vet.App. at 81. In such an
instance, a claimant cannot meet this burden merely by
presenting lay testimony, because lay persons are not
competent to offer medical opinions. Espiritu, 2 Vet.App. at
495.
The United States Court of Veterans Appeals (Court) has held
that competent evidence pertaining to each of three elements
must be submitted in order make a claim for service
connection well grounded. There must be competent (medical)
evidence of a current disability; competent (lay or medical)
evidence of incurrence or aggravation of disease or injury in
service; and competent (medical) evidence of a nexus between
the in-service injury or disease and the current disability.
This third element may be established by the use of statutory
presumptions. Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
In the present case, the Board recognizes that the veteran
currently has coronary artery disease. However, the veteran
has submitted no competent medical evidence which shows that
coronary artery disease began during service or within one
year of service. Rather, the available evidence shows only
that it was evident as early as 1977, many years after his
separation from service. While the veteran is certainly
competent to provide testimony regarding his symptomatology
during service, see Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990), there is no indication in the record that he has the
medical expertise necessary to conclude that his coronary
artery disease had its onset in service, as a result of
inhalation of fumes or otherwise. Layno v. Brown, 6 Vet.App.
465 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494
(1992). Therefore, although he has described the nature of
his current problems and the circumstances in which he
believes they arose, there has been no presentation of
evidence by competent medical authority that his coronary
artery disease can be linked to military service.
For a service connection claim to be deemed plausible, there
must be competent medical evidence of both a current
disability and competent medical evidence of a causal
relationship between that current disability and service.
Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Rabideau v.
Derwinski, 2 Vet.App. 141, 143 (1992). Thus, while giving due
consideration to the veteran's testimony at the August 1992
RO hearing, the Board nevertheless finds that evidence
sufficient to make his claim well grounded has not been
submitted. When evidence has not been submitted sufficient
to make a claim well grounded, the Board does not have
jurisdiction to act. Boeck v. Brown, 6 Vet.App. 14 (1993).
Therefore, this appeal must be dismissed.
ORDER
The veteran’s claim of entitlement to service connection for
coronary artery disease is not well grounded; the appeal is
therefore denied.
MARK F. HALSEY
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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